By Nicole Krüger, Firm: kliemt.de
This article examines the legal issues around the use of diversity surveys of employees in Germany.
‘Diversity Management’ is a strategy originating in the US that is still on everyone's lips and has sent ripples through the German economy. The US personnel management concept presents an attractive vision of proactive promotion of individual potential, diversity and a non-discriminatory climate in the workplace. In Germany, too, it is now established in larger HR departments as an instrument for strengthening and maintaining the diversity of the workforce and making the best possible use of the resulting advantages.
The importance of this topic can also be seen from the fact that currently about 3000 companies, associations and institutions in Germany, which employ about ten million people, signed the 2006 so-called ‘Charter of Diversity’. In this charter, the signatories undertake to voluntarily promote diversity in Germany. The signatories include 28 of the Dax 30 corporations and nine of Germany's ten largest cities. 81% of the signatories stated in a 2016 survey that they had already implemented diversity measures.
The advantages of diversity (and the image enhancement some organisations hope to see as a result of increased diversity) mean more and more employers want to pursue a diversity management policy that is profitable in many respects. However, this starts with an assessment of the current status: how diverse is my company at the moment? This question cannot be answered without the concrete help of employees, who will sometimes be asked to disclose sensitive data.
In order to be able to collect information about the current status as time and cost-effectively as possible, a survey can be used. This article will clarify whether such a survey is permitted, what problems and risks could possibly arise and whether the works council is entitled to co-determination rights in the implementation of a diversity survey.
The legality of a diversity survey of employees
First of all, it should be noted that this sort of data collection always involves a tension between the employer's interest in precisely this information and the employees' ‘right of personality’ (the German right to the protection of human dignity and for an individual to develop his or her personality) protected under Article 2 (1) in conjunction with Article 1 (1) of the Basic Law.
The employer's interests and the resulting right to information are only considered worthy of protection if there is a direct factual connection between the question posed and the activity performed. In addition, the employer's interest in the information solicited must be more important than the employee's interest in protecting his personal data. The conflict this creates must therefore be assessed on a case-by-case basis and cannot be answered in a blanket manner. While the employer's interest (after hiring) regularly predominates in questions of serious disability and marital status, the assessment will be quite different for questions of religious affiliation, nationality and even sexual orientation.
When weighing the employer's interests in diversity management against the employee's interest in information relevant to the German Equal Treatment Act (‘AGG’), the employee's interests are likely to be given priority, especially in the case of the types of sensitive information mentioned above.
In its decision of 21 November 2017 (BAG 21.11.2017- 1 ABR 47/16), the Federal Labour Court (‘BAG’) assumes that there is no violation of the right of personality where there is voluntary participation in an employee survey. However, with voluntary participation, there is always the problem of low levels of participation. Would you participate in such a survey as an employee?
Data protection and the AGG: a further hurdle
Even where survey participation is voluntary, there may be a violation of the Federal Data Protection Act (‘BDSG’) or the AGG.
According to s26 BDSG, employees’ personal data can only be requested and recorded if this is necessary for the conclusion, execution or termination of the employment relationship. The following requirements are therefore placed on an employer's ‘survey right’:
- The answer to the question must be of essential importance for the employment relationship.
- The interests of the employer must outweigh the interests of the employee.
It is possible to circumvent these strict requirements if the employee has given his or her consent in accordance with s26(2) BDSG. However, comprehensive conditions (including agreement in writing, an obligation to provide information, etc.) must also be attached to these. In particular, participation must be voluntary. The conditions for the determining if participation is actually voluntary are controversial.
In addition, religion, origin and sexual identity fall under the so-called ‘differentiation features’ according to s1 AGG, meaning all questions related to them are basically inadmissible. So-called ‘diversity profiling’ is regulated by s5 AGG, which stipulates that a measure that discriminates against a group is also permissible if it compensates for otherwise existing disadvantages of another group as a result of a characteristic mentioned in s1 AGG. However, rigid quotas or unconditional priority regulations must be avoided and the possible advantages and disadvantages for all affected groups must be carefully weighed up before a measure is implemented.
These risks should also not be ignored, as infringements can have legal consequences, in particular in the form of claims for damages. These risks can be eliminated by not only conducting the survey voluntarily, but also anonymously.
Works council co-determination right
In principle, there is a right of co-determination in these cases pursuant to s94 of the Works Constitution Act (‘BetrVG’). In the opinion of the BAG, however, this right does not apply if the employee survey is strictly voluntary. The protective purpose of the co-determination right is no longer required if the employee can decide for him or herself whether to answer the survey or not.
Diversity surveys are possible. In order to increase the participation rate and, in particular, not to violate data protection law, it is strongly recommended surveys are voluntary and anonymous. If necessary, the works council can also agree to advertise the survey. For this purpose, a short and voluntary works agreement (in which the works council, on behalf of employees, agrees to the conduct of a diversity survey) may be appropriate, which can grow into a more comprehensive diversity management agreement.